Why Ridiculous Statutory Rates For File Sharing Are Inappropriate

from the that's-not-what-statutory-rates-are-for dept

While I definitely disagree with how Charlie Nesson conducted Joel Tenenbaum's defense in his file sharing case, Nesson has been posting some rather interesting posts on his blog lately, including his recent post highlighting the history of statutory awards for copyright infringement, as written by Pamela Samuelson and Tara Wheatland. While he (oddly) does not say where the writeup is from, you can find the full 2009 paper if you'd like.

We had already been discussing how the juries came up with their ridiculously high awards in the various Jammie Thomas trials, and one of our commenters (a lawyer, of course) insisted that the high rates were necessary to act as a deterrent, and even insisted this was the point of statutory rates. Except, as the history shows, that is not true at all. Statutory rates were designed to only apply when actual damages could not reasonably be assessed, and were mainly supposed to be about compensation, not deterrence:

Cases interpreting this new provision articulated its purpose as granting fair compensation to copyright owners when "the rules of law render difficult or impossible proof of damages or discovery of profits." In keeping with this purpose, some courts refused to order defendants to pay statutory damages when actual damages or profits could be proven. Indeed, the Supreme Court held that the 1909 Act's statutory damage provision was inapplicable when damages and profits were proven. If a successful plaintiff had suffered only nominal or no damage, the minimum of $ 250 might be awarded, but no more, in keeping with the policy that statutory damages should not be a penalty. Courts sometimes also refused to impose any statutory damages when the evidence showed no harm to the copyright owner and no profits to the infringer. In keeping with the no-penalty rule, appellate courts sometimes reduced large statutory damage awards to the minimum in close, although ultimately unsuccessful, fair use cases. Occasionally, appellate courts reduced statutory damage awards that were excessive in relation to approximate damages or profits.

We base our conclusion that statutory damages under the 1909 Act were mainly compensatory in purpose on several factors. First, the structure of § 101(b) identifies actual damages and defendantís profits as the primary remedies for infringement, and statutory damages as an "in lieu" remedy. Second, the legislative history of the 1909 Act, as well as the case law interpreting it, view the primary impetus for adopting statutory damages as providing some relief when damages and/or profits are difficult to prove. Third, in addition to providing a range within which statutory damage awards should be made and setting a cap to prevent excessive awards, § 101(b) proffered guidelines for what Congress considered to be reasonable damages for various types of works. Fourth, the case law interpreting the 1909 Act's statutory damage provision generally focused on its compensatory function and respected the "no penalty" direction. This is not to say that statutory damage awards under the 1909 Act lacked deterrent purposes and functions. By setting a floor of $ 250 and giving courts discretion to award up to $ 5,000, Congress surely intended to deter infringement, but the compensatory impulse was most evident in the law as applied.

Useful historical context for those who insist that a fine of $62,500 for sharing a single song for totally non-profit reasons is somehow what the law actually intended.

Deter what? It was never proven at Tenenbaum's trial that any unauthorized person shared songs off of her computer.

Essentially, Tenenbaum is being made to pay 1.5 million dollars for downloading 24 songs.

Think about that. 24 songs is about two CDs worth of music. If I steal two CDs from Walmart, I wouldn't have even committed a felony. I'd be charged with a misdemeanor and the most I'd have to pay back is the actual cost of the CDs. About 30 bucks, tops.

In the theft of the CD, Walmart would have lost real money. The actual cost of the CDs. While if I download the same songs, the most anyone would have lost would be a possible sale.

But apparently we want to deter the loss of possible sales more than the actual loss of property.

If anyone needs any evidence that the copyright middlemen have too much control over our government, here it is. You steal physical property, you get a slap on the wrist. You deny someone a sale. You're out over a million bucks.

Re:

I think you mean Thomas-Rasset, not Tennenbaum. ;)

But agreed, totally. That's why pointing out the difference between infringement and theft is necessary, not only because they *are* different sets of laws (I think of theft as subtraction and infringement as addition), but also because of the penalty involved. Not to mention that in civil infringement cases you need to pay for your own defense, unlike a lot of criminal offense situations.

For the **IAs - and judicial officials - to continually use these two terms synonymously verges on deceitful. Really, would the RIAA *want* infringement to be truly considered theft under the law? There's no money in it then.

But there was lost profit in that the infringers chose to freely download material instead purchasing it. Calling it a non-profit use doesn't apply. Moreover, what about the precedent set by the rulings of SCOTUS justices that fundamentally alter the intended purpose of statutory damages? It's one thing to be disappointed by a ruling and another to protest that which is judicially sound.

Can a trial in the US be used as an example to others (a "deterrent"?). As I understand, where I live a trial is only about that case and the rates have to do with damages/compensation, but it's illegal to use a court room into a showcase of bad behavior (meaning, you can't imply that you're doing that, ever). I may be wrong though, I'm not a lawyer. I don't see justice when your case is serving as an example. Even if I completely agree on trials establishing precedents (because if that was not the case then we wouldn't have equality), I think that a trial should be about the case in trial, not about making other people not want to behave as the tried person.

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But there was lost profit in that the infringers chose to freely download material instead purchasing it.

Inaccurate.

These people were prosecuted for "making available" not for downloading. It is not clear whether they actually acquired the material legally in the first place - but either way it would have had no effect on the trial. So it is clear that there is no evidence that act for which they were actually sued resulted in any lost profits - and it certainly didn't result in any financial return for those being sued.

Since I assume Mike is referring to me in this story, I'd like to point out that I never said the amount of damages awarded in the Thomas case was "necessary" to deter any particular type of infringement. In fact, I never said that the way the statutory damages provision as written is necessary to deter any particular type of infringement.

Rather, I said that availability of some damages multiplier above 1x actual damages or 3x actual damages is necessary to deter infringement.

What that multiplier should be in any particular case is not an easy question to answer, and I don't have a particular problem with leaving that to a jury to decide. Had I been on the Thomas jury, I probably would have argued for a lower damages award than the last jury came up with (but I don't know all the facts).

Is there precedent?

Pardon my ignorance (wish I had time to read through the paper and do a little research) but are there legal precedents for the use of statutory damages as described? It sure sounds like there are, and that they have been tossed to the wayside in favor of using statutory damages as a "deterrent"

Also, not sure why the reasoning or application for statutory damages in the 1909 Copyright Act is supposed to indicate that I was off base re: motivation for statutory damages in the current Copyright Act.

Here are a couple quotes from cases (from the 9th Circuit and the 2d Circuit, which get the most copyright cases), noting deterrence of infringement as a goal and consideration in awarding statutory damages. There are many, many others like this.

Re:

Since I assume Mike is referring to me in this story, I'd like to point out that I never said the amount of damages awarded in the Thomas case was "necessary" to deter any particular type of infringement.

I too noticed that Mike mischaracterized your position in the article. He tends to do that when discussing views he opposes. I don't think it's a conscious move on his part. Exaggerating the other side's views just comes naturally since he's so biased.

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And that's the problem with Mike's whole premise in this article. The law in 1909 is different than the law now. To complain that the current law isn't true to the law as it was 100 years ago is just silly.

In 1909 Plessy v. Ferguson was good law and the separate but equal doctrine was in effect. Things changed, and in 1954 Brown v. Board of Education was handed down. No more separate but equal. Should we all be lamenting the loss of segregation in public schools? According to Mike's logic, the answer is yes.

The law changed. The damages handed down by the jury were well within the law as written. If Congress didn't think the law was being applied properly, they would change it. The most recent changes, including the NET Act, only increased the amount of statutory damages. Obviously Congress is happy with these high damage awards.

For Mike to say that this is not "what the law actually intended" just reeks of desperation. The damages in this case are exactly 100% what the law intended. Mike's so delusional that he's applying the law from 100 years ago to a case that is happening today. Look to what the law says now, Mike. Or can you not understand the difference?

And don't get me wrong--I don't agree with these crazy awards of damages. But I'm not so desperate as to pretend that the jury did anything outside of what the law actually says. Only silly people like Mike who wear blinders and are opposed to seeing the truth in anything that differs from their opinion would deny that.

Re: Re:

"I don't think it's a conscious move on his part."

Not sure. He doesn't often own up when his mischaracterizations or exaggerations are pointed out. The only time I can recall him doing so was when someone who basically agreed with him on the overal issue pointed out his mistake (I think he said "fair enough"), when others who basically disagree with him on the overal issue had pointed out the same mistake numerous times without any such acknowledgement.

Re: The point... you missed it

The point of calling you out in relation to the article was that deterrence was not supposed to be a primary factor for consideration. The primary factor to be considered is compensation of actual damages with statuatory rates providing an option for "in lieu" damages.

Re: Re: The point... you missed it

Re: Re:

To be fair to Mike, the blog posting he refers to is the real source of this confusion. Not sure whether the Samuelson article is better (although the one Samuelson article I've actually read got a case holding 100% wrong, so I wouldn't give the benefit of the doubt).

Re:

Here are a couple quotes from cases (from the 9th Circuit and the 2d Circuit, which get the most copyright cases), noting deterrence of infringement as a goal and consideration in awarding statutory damages. There are many, many others like this.

Right. There is absolutely no doubt that the law as it stands now allows exemplary statutory damages.

Mike is whining about how 100 years ago we did it differently. He thinks that since we do it differently now, we must be doing it wrong.

That position is just incredibly silly and desperate, but it really is quite amusing.

I guess Mike would be OK if we went back to not letting women vote. I mean, that's how we did it 100 years ago, right?

Re: Re: Re: That's where you wrong

Of course a court may choose to apply "exemplary damages" within the regime of a "statutory damages" award. However statutory damages of themselves are not intended to be exemplary. They are simply meant to sidestep the need to calculate actual damages where this cannot be done easily.

Re: Re: Re:

Not sure. He doesn't often own up when his mischaracterizations or exaggerations are pointed out.

Perhaps Mike's propensity to mischaracterize opposing views is just simple willful ignorance. And you're right--he hardly ever fesses up when called out for his mistakes. That's a shame, because doing so would give him some much needed credibility.

Re: Re: Re: The point... you missed it

That's because in typical lawyer fashion, you completely failed to provide any concrete information about what numbers you believed were fair. You indicated that you felt 1x - 3x compensation was too low in a discussion about high statuatory damages. The implication is that you agree with the high amounts. Your failure to clarify led to the misunderstanding.

Maybe next time, provide some clarity in your responses. While not my personal opinion, perhaps something like "I do believe statuatory damages need to be sufficiently high to provide a disincentive, it also stands to reason that there should be a reasonable upper limit. It also stands to reason that the amount needs to be decided on a case by case basis."

Re: Re: Re:

To be fair to Mike, the blog posting he refers to is the real source of this confusion. Not sure whether the Samuelson article is better (although the one Samuelson article I've actually read got a case holding 100% wrong, so I wouldn't give the benefit of the doubt).

LOL! Even if Prof. Samuelson is correct that the law was different 100 years ago (and she may or may not be), that doesn't change the fact of what the law says today. Laws change with the times. You can't just cherry-pick a law you agree with from a different time and say that since we aren't doing it that way now, we must be doing it wrong. That's just silly. The world is a much different place today than it was then.

Lets look at HOW the law changes with the times....

Does the law change with the times because the PEOPLE make changes happen, or does it change because MONEY is applied to the right people to get the laws to change?

Regardless of any other facts, I think we can all agree that 'We the People' have had little to no impact on the changes that have been made in copyright laws over the years. While the corporate agents (aka "Shills" from the RIAA, MPAA, collection societies, etc) have been buying congress critters and senators left and right with campaign contributions, lavish retreats and gifts, pro-copyright parties, etc.

So yes, the laws have changed, but that doesn't mean that we the people have to respect or obey the laws that the entertainment industry has purchased. Jury nullification gives the people (those who have a clue and understand the issues) a chance to influence those laws, so why isn't this concept presented as an option to the people in cases like this? Because the corporate masters don't want it to be an option, imagine if 12 people (repeated enough times in enough cases) could completely nullify the $100-$500 million (I'm being conservative here) the industry spent buying those laws. They wouldn't like that to happen, so they somehow made sure that it's not even presented as an option.

In the retrial recently discussed, when the judge presented the options of:
statutory damages may range from $750 to $30,000 or up to $150,000 for willful infringement.
Why not also include the option:
Or if you feel that this punishment far exceeds the crime, you can award the cost of purchasing the 24 songs from I-tunes, for a total of $23.76 (assuming .99 pricing at the time).

The jury doesn't HAVE to follow the judges instructions, or the letter of the law, but they all think they do, and so like the good little sheeple that they are, they do.

Re: Re: Re: That's where you wrong

As I noted in the prior discussion Mike mentions, and below, with citations, deterrence *is* a proper consideration when applying copyright statutory damages.

I accept that if wrongdoing is proven, deterrence of future acts by the same individual should be considered (or rejected) when calculating damaged.

However the damaged awarded in the infamous RIAA case seem to be calculated to act as a public deterrent well beyond what would be necessary for the individuals involved (especially considering their potential income).

Do you think those awards were appropriate deterrence for the individuals involved? Because of the extraordinary awards, some of us think the whole campaign smacks of social engineering, which in turn is abuse of the justice system.

Re: Re: Re: Re: Re: That's where you wrong

It is legally permissible to consider public deterrence in setting statutory damage awards. I only mention that because this article and some comments seem to suggest that it's not.

Yikes, had no idea. Not a lawyer, but I find it hard to believe that, at least in these RIAA cases, the (offending) individuals were given proper consideration or justice in the damage consideration. There has to be a line where public deterrence must be limited so that reasonable justice for the situation and people actually involved is served.

Re: Re: Re: Re: Re: Re: That's where you wrong

"I find it hard to believe that, at least in these RIAA cases, the (offending) individuals were given proper consideration or justice in the damage consideration"

Well, Thomas got three separate trials on damages, and the award went up each time. Hard to argue she didn't have her day in court.

I think we'll see whether the award will be reduced either (a) by the trial judge as a matter of law, or (b) on appeal. There's some unsettled law on the extent to which statutory damages must be tied to actual damages and whether/how that applies to the copyright act.

Re: Lets look at HOW the law changes with the times....

"Why not also include the option:
Or if you feel that this punishment far exceeds the crime, you can award the cost of purchasing the 24 songs from I-tunes, for a total of $23.76 (assuming .99 pricing at the time)."

Because that's not the law. I know jury nullification proponents don't like to hear this, but courts don't view jury nullification as a "right" or legally appropriate.

Re:

Here are a couple quotes from cases (from the 9th Circuit and the 2d Circuit, which get the most copyright cases), noting deterrence of infringement as a goal and consideration in awarding statutory damages. There are many, many others like this.

Indeed. Never said the courts haven't twisted this. Just pointing out the original intent of statutory damages, and why it might be wise to remember that when claiming that the purpose is deterrence.

Re:

Also, not sure why the reasoning or application for statutory damages in the 1909 Copyright Act is supposed to indicate that I was off base re: motivation for statutory damages in the current Copyright Act.

Because the discussion is about the original intention of statutory damages, and to show how they've since been twisted.

Re: Re: Lets look at HOW the law changes with the times....

Re: Deterrent

I don't see how this 1.5 million judgement against Thomas-Rasset is any kind of future deterrent for her. She can never possibly pay this off. At this point she can download and host every song ever produced and have nothing to lose. What, a trillion dollar award is now going to deter her?

Re: Re:

Whether or not deterrence was or should have been considered in drafting or applying the 1909 act, I don't think courts have "twisted" anything in applying the 1976 act.

It's a different act, and I don't think there's anything wrong or "twisted" with acknowledging deterrence as a policy motivation behind the current statutory damages provisions.

Moreover, while lots of modern copyright law developments are unjustified, I think deterrence-related damages are wholly justified (which is not to say that I think they've been applied in an appropriate amount in every case).

Re: Re: Re:

Wait. You really think if someone says this law was better 100 years ago, they have to say that ALL laws were better 100 years ago? Seriously?

No, Mike. We all know you cherry-pick. That's not the point.

The point is that your conclusion that damages awarded under the law as it stands today are not "what the law actually intended" since the law was different 100 years ago is just plain silly.

The analogy, which you apparently don't grasp, is that it's like saying that the law that allows women to vote today is not "what the law actually intended" because 100 years ago we didn't let women vote.

It just makes no sense. And it's obvious you'll grasp at anything to try to make your points.

"Useful historical context for those who insist that a fine of $62,500 for sharing a single song for totally non-profit reasons is somehow what the law actually intended."

Assuming we are talking about a work preserved under copyright, would it not be more correct to pose the above as:

"Useful historical context for those who insist that a fine of $62,500 for the worldwide distribution without authorization from the rights holder of a single song for totally non-profit reasons is somehow what the law actually intended."

While many argue that theft and infringement are not equivalents, there is no doubt that P2P sharing of a song without the permission of the rights holder is fully equivalent to impermissible distribution.

Re: Re: Re: Re:

The analogy, which you apparently don't grasp, is that it's like saying that the law that allows women to vote today is not "what the law actually intended" because 100 years ago we didn't let women vote.

Uh, that may be the dumbest thing you've said. No wonder you're anonymous again.

No one said that "what the law intended 100 years ago means it's what the law must be today." What this did was explain the PURPOSE of this law.

We made an EXPLICIT decision to let women vote, by noting that it was a MISTAKE that we did not. That did not happen here. Things changed, but it changed because people -- biased lawyers, mainly -- twisted the law to pretend it meant something it did not.

It just makes no sense. And it's obvious you'll grasp at anything to try to make your points.

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Uh, that may be the dumbest thing you've said. No wonder you're anonymous again.

Whether I choose to post anonymously or not requires no comment from you. If you do not respect my privacy going forward, I will simply use proxies. Shame on you, Mike. Have you no respect for the privacy of your commentators?

No one said that "what the law intended 100 years ago means it's what the law must be today." What this did was explain the PURPOSE of this law.

But the purpose of the law 100 years ago has little to do with the law today. That's the point you don't seem to understand.

We made an EXPLICIT decision to let women vote, by noting that it was a MISTAKE that we did not. That did not happen here. Things changed, but it changed because people -- biased lawyers, mainly -- twisted the law to pretend it meant something it did not.

And it was "biased lawyers" who created the law as it was 100 years ago. Who's to say it's more "twisted" now than it was then? That's obviously your bias.

I don't need to grasp at anything when I'm right.

No, Mike. You're wrong. You are still complaining that the law today is different than it was 100 years ago, and somehow you think that means something that it doesn't.

Re: Re: Re: Re: Re: Re: Re: That's where you wrong

Re: Re: Re: Re: Re: Re: Re: Re: That's where you wrong

I prefer relying on the actual, current, binding law (cited below from the 9th and 2d circuit) which contradicts your unsupported assertion, rather than Wikipedia or an out-of-date, no-longer-applicable statute.